Citation Nr: 0625747
Decision Date: 08/21/06 Archive Date: 08/31/06
DOCKET NO. 04-17 504 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island
THE ISSUE
Entitlement to separate schedular 10 percent disability
ratings for tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
D. J. Drucker, Counsel
INTRODUCTION
The veteran had active military service from February 1964 to
January 1966.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Providence,
Rhode Island. This matter has been subject to an
administrative Stay. That was recently resolved by Court
action as described below.
FINDING OF FACT
The objective and competent medical evidence of record
reflects that the veteran experiences recurrent tinnitus for
which the maximum schedular rating of 10 percent is assigned.
CONCLUSION OF LAW
The legal criteria for separate schedular 10 percent
disability ratings for tinnitus are not met as a matter of
law. 38 U.S.C.A. §§ 1155, 5103-5103A, 5107 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 4.87, Diagnostic Code (DC) 6260
(2005); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran, through his accredited service representative,
has asserted that he is entitled to separate 10 percent
disability ratings for his service-connected tinnitus because
he has tinnitus in both ears.
I. Duty to Notify and Assist
The Board has considered the provisions of the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000) (VCAA) (codified at 38 U.S.C.A. §§ 5103, 5103A
(West 2002 & Supp. 2005)). The VCAA includes an enhanced
duty on the part of VA to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. The VCAA also redefines the obligations of
VA with respect to its statutory duty to assist claimants in
the development of their claims. In August 2001 VA issued
regulations to implement the provisions of the VCAA, which
are now codified at 38 C.F.R. §3.159 (2005).
The duty to notify and assist provisions of the VCAA are
potentially applicable to all claims filed on or after
November 9, 2000, the date of enactment. See Kuzma v.
Principi, 341 F.3d 1327 (Fed. Cir. 2003). The veteran's
claim for separate schedular ratings was filed in January
2003, after enactment of the VCAA. The United States Court
of Appeals for Veterans Claims (hereinafter, "the Court")
has held, however, that the statutory and regulatory
provisions pertaining to VA's duty to notify and to assist do
not apply to a claim if resolution of the claim is based on
statutory interpretation, rather than consideration of the
factual evidence. See Dela Cruz v. Principi, 15 Vet. App.
143, 149 (2001); see also Valiao v. Principi, 17 Vet. App.
229, 232 (2003) ("Where the facts averred by a claimant
cannot conceivably result in any disposition of the appeal
other than affirmance of the Board decision, the case should
not be remanded for development that could not possibly
change the outcome of the decision.").
In the instant case, the facts are not in dispute; resolution
of the veteran's appeal is dependent on interpretation of the
regulations pertaining to the assignment of separate
schedular ratings for bilateral tinnitus. As will be shown
below, evidence of a bilateral disability does not change the
outcome of the appeal.
VA has no further duty, therefore, to notify him of the
evidence needed to substantiate his claim, or to assist him
in obtaining that evidence, in that no reasonable possibility
exists that any further assistance would aid him in
substantiating the claim. See 38 U.S.C.A. § 5103A; Wensch v.
Principi, 15 Vet. App. 362, 368 (2001) (compliance with the
VCAA is not required if no reasonable possibility exists that
any notice or assistance would aid the appellant in
substantiating the claim).
The provisions of the Veterans Claims Assistance Act have no
effect on an appeal where the law, and not the underlying
facts or development of the facts are dispositive in a
matter. Manning v. Principi, 16 Vet. App. 534, 542-543
(2002).
II. Legal Analysis
The medical evidence (including findings of an October 2001
VA examination) shows that the veteran has constant tinnitus
in his right ear, which has been found to be related to his
military service. In a November 2001 rating decision, the RO
granted service connection for tinnitus, and assigned a
10 percent rating for the disorder pursuant to 38 C.F.R.
§ 4.87, DC 6260. In a March 2002 determination, the RO
confirmed and continued the previously assigned 10 percent
rating for tinnitus. In January 2003, the veteran's
representative requested separate compensable ratings for the
veteran's service-connected tinnitus.
The regulations pertaining to the rating of tinnitus under DC
6260 were revised, effective June 10, 1999, and are now
codified at 38 C.F.R. § 4.87, DC 6260 (2005). Under the
revised criteria, effective June 10, 1999, a maximum 10
percent schedular rating is warranted for recurrent tinnitus,
regardless of its cause. 38 C.F.R. § 4.87, DC 6260 (2005).
Here, the Board notes that on May 14, 2003, VA published a
final rule adding a note to Diagnostic Code 6260, clarifying
that a single 10 percent rating for recurrent tinnitus was
appropriate "whether the sound is perceived in one ear, both
ears, or in the head." See 68 Fed. Reg. 25,822, 25,823
(2003); 38 C.F.R. § 4.87, DC 6260, note (2). As was stated
in the notice of proposed rulemaking, the amendment
"involve[d] no substantive change and is consistent with
current [VA] practice." 67 Fed. Reg. at 59,033. In other
words, the intended effect of the change was "to codify
current standard VA practice by stating that recurrent
tinnitus will be assigned only a single 10-percent evaluation
whether it is perceived in one ear, both ears, or somewhere
in the head." Id.
Additionally, in a June 2003 opinion, the VA General Counsel
held that DC 6260, as in effect prior to June 10, 1999, and
as amended as of that date, authorizes a single schedular 10
percent disability rating for tinnitus, regardless of whether
tinnitus is perceived as unilateral or bilateral. See
VAOPGCPREC 2-2003 (May 22, 2003).
In the veteran's November 2003 notice of disagreement, and in
a January 2003 written statement, his representative argued
that the rating criteria were ambiguous with respect to
whether the 10 percent rating was for unilateral or bilateral
tinnitus. As such, he argued that the benefit of the doubt
should be resolved in the veteran's favor and a finding made
that DC 6260 was for unilateral tinnitus. The notice of
disagreement referenced the recent VA General Counsel opinion
discussed above, but deemed it inapplicable to the veteran's
claim.
In the April 2004 statement of the case, the veteran was
specifically advised of the changes to DC 6260 published on
May 14, 2003 and, thus, the Board finds that he is not
prejudiced. Obviously, the substance of the DC 6260, as
applicable to the veteran's claim, remains the same. See
Edenfield v. Brown, 8 Vet. App. 384 (1995).
In an October 2005 written statement, the veteran's
representative argued that the veteran was entitled to
separate 10 percent ratings, citing to Smith v. Nicholson, 19
Vet. App. 63 (2005), in which the Court held that, with
regard to tinnitus, 38 C.F.R. § 4.25(b) allows for a separate
evaluation for each service-connected disability arising from
a single disease, unless otherwise provided. In Smith v.
Nicholson, 19 Vet. App. at 78, the Court held that the pre-
1999 and pre-June 13, 2003 versions of DC 6260 required the
assignment of dual ratings for bilateral tinnitus.
However, VA appealed Smith v. Nicholson, supra, to the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit)
and stayed the adjudication of tinnitus rating cases affected
by the Smith decision. The decision cited by the veteran's
representative was reversed by the Federal Circuit to the
extent that the Court held that DC 6260 required the
assignment of dual schedular evaluations for bilateral
tinnitus. In Smith v. Nicholson, 451 F.3d.1344 (Fed. Cir.
2006), the Federal Circuit concluded that the Court erred in
not deferring to the VA's interpretation of its own
regulations, 38 C.F.R. § 4.25(b) and DC 6260, that limits a
veteran to a single disability rating for tinnitus,
regardless of whether tinnitus is unilateral or bilateral.
The Federal Circuit similarly noted that there was no
language in the applicable diagnostic criteria clearly
indicating that dual evaluations were required.
Subsequently, the stay of adjudication of tinnitus cases was
lifted.
Turning to the merits of the veteran's claim, the Board notes
that under the current schedular criteria, a maximum 10
percent rating is warranted for recurrent tinnitus,
regardless of its cause. 38 C.F.R. § 4.87, DC 6260. The
veteran's service-connected tinnitus is assigned a 10 percent
rating, the maximum schedular rating assignable for tinnitus
under current regulations. Again, no higher rating for
tinnitus is available under the Rating Schedule.
In view of the Federal Circuit's decision in Smith v.
Nicholson, supra, the interpretation of the pre-2003 version
of DC 6260 asserted by the veteran's representative must be
rejected. The Board further finds that the version of DC
6260 in effect prior to June 2003 precludes an evaluation in
excess of a single 10 percent evaluation for tinnitus.
Therefore, the veteran's claim for separate 10 percent
schedular ratings for his service-connected tinnitus must be
denied under both the new and old versions of the regulation.
As the disposition of this claim is based on the law, and not
the facts of the case, the claim must be denied based on a
lack of entitlement under the law. See Sabonis v. Brown, 6
Vet. App. 426, 430 (1994).
(CONTINUED ON NEXT PAGE)
ORDER
Separate schedular 10 percent disability ratings for tinnitus
are denied.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs